United States District Court, E.D. Michigan, Northern Division
Hon.
David R. Grand, Judge
OPINION AND ORDER DENYING RESPONDENT'S MOTION TO
DISMISS AND DIRECTING RESPONDENT TO FILE A RESPONSE TO THE
PETITION
THOMAS
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
On
February 5, 2019, Michigan prisoner Jim Williams, Jr., filed
a petition for writ of habeas corpus, challenging his jury
trial convictions in Wayne Circuit Court of assault with
intent to do great bodily harm, Mich. Comp. Law §
750.84, and other offenses related to a shooting that
occurred after an altercation. Petitioner challenges the
effectiveness of trial counsel and the improper
habitual-offender enhancement for his sentence. ECF No. 1 at
PageID.7-10. Respondent Mark McCullick filed a motion to
dismiss claiming Petitioner's sentencing claim is
unexhausted, resulting in a “mixed” petition. ECF
No. 7.
As
explained below, Petitioner has not exhausted his state court
remedies as to his sentencing claim. However, a return to the
state courts would be futile. Therefore, Respondent's
motion to dismiss the petition will be denied without
prejudice. Respondent will be directed to respond to the
petition.
I.
The
Michigan Court of Appeals summarized the facts of
Petitioner's case as follows:
According to the evidence introduced at trial, defendant had
an altercation with Demetrius Beckum at a liquor store on
April 30, 2015. Later that day, defendant fired several shots
at Beckum while Beckum was speaking to Verdena Jamison on
Jamison's front porch. Beckum was shot in the foot.
Defendant then fled the scene in a blue-green van. Beckum
identified defendant as the shooter, and Jamison's
neighbor, Jeffery Woodford, heard the shots and saw defendant
driving away in the blue-green van.
People v. Williams, No. 335608, 2018 WL 1767288, at
*1 (Mich. Ct. App. Apr. 12, 2018), leave to appeal
denied, 503 Mich. 875 (2018). Petitioner was convicted
of assault with intent to do great bodily harm, Mich. Comp.
Law § 750.84; discharging a firearm at a building
causing injury, § 750.234b(3); carrying a dangerous
weapon with unlawful intent, § 750.226; felon in
possession of a firearm, § 750.224f; carrying a
concealed weapon (CCW), § 750.227; and possession of a
firearm during the commission of a felony, second offense,
§ 750.227b. Id. He was sentenced to a term of
incarceration of five to ten years for the assault charge;
six years, eleven months to fifteen years on the firearm
discharge count; a determinate five-year sentence for the
second felony-firearm offense; and twenty-one months to five
years on the remaining charges. See Mich. Ct. of
App. record at 14, ECF No. 8-16 at PageID.965 (Judgment of
Sentence, October 13, 2016). Each of the sentences were
imposed concurrently except the sentence for the assault
conviction and felony-firearm conviction were imposed
consecutively. Id.
Petitioner
appealed by right. He raised two claims: ineffective
assistance of trial counsel and improper habitual-offender
sentence enhancement, where no notice was provided as
required by statute. See id. at 38, PageID.989.
While
his direct appeal was pending, Petitioner moved for and was
granted re-sentencing in the trial court. 7-14-17
Post-Conv'n Hr'g Tr. at 9, ECF 8-14 at PageID.929,
934. He was re-sentenced with no habitual offender
enhancement. Mich. Ct. of App. record at 142, ECF No. 8-16 at
PageID.1092-1093. Petitioner's minimum sentence for the
assault charge was reduced by seventeen months, to
forty-three months; the firearm discharge count minimum was
reduced eighteen months to five years, five months, and the
sentence on the felony-firearm charge was reduced to 60
months. Id. at 141, PageID.1092 (Amended Judgment of
Re-Sentence, Sept. 19, 2017). All sentences are still
concurrent, with the exception of the assault and
felony-firearm convictions which are still consecutive.
Petitioner's
re-sentencing without the habitual-offender enhancement
mooted his original sentencing issue on direct appeal.
Accordingly, through his appellate attorney, Petitioner filed
an amended brief in the state court of appeals, which revised
the sentencing issue as follows:
Did the trial court err in imposing a sentence which violates
the principle of proportionality as set forth by People
v. Milbourn[, 435 Mich. 630 (1990)] and is unreasonable
in violation [of] People v. Lockridge[, 498 Mich.
358 (2015)], thereby entitling the Defendant-Appellant to
re-sentencing?
Id. at 120, PageID.1071.
The
state court of appeals found Petitioner's first claim,
ineffective assistance of trial counsel, to be “without
merit.” Williams, 2018 WL 1767288, at *3. It
then addressed and rejected Petitioner's amended
sentencing issue, his “unreasonable and
disproportionate” sentence. Id. The court held
that “[a] sentence within the applicable sentencing
guidelines range need not be reviewed for reasonableness and
. . . . a sentence within the advisory guidelines range is
presumptively proportionate . . .” Id.
(citations and internal quotation marks omitted). The opinion
acknowledged ...